United States of America Ex Rel. Joseph Marcial, A/K/A Joseph Johnson v. Edward M. Fay, Warden of Green Haven Prison , 247 F.2d 662 ( 1957 )

MEDINA, Circuit Judge.

This is an appeal from a denial of a petition for a writ of habeas corpus. Appellant is now serving a 10 to 30 year sentence imposed on him as a second-felony offender by the County Court of Kings County, New York, on a plea of guilty to second-degree robbery. His contention is that the sentence as a second offender is invalid because the prior conviction upon which it was based was had without due process of law. A certificate of probable cause and leave to appeal in forma pauperis were granted by this Court on October 23, 1956, and the case was argued to the Court en banc.

Appellant’s first felony conviction was on January 11, 1935, when the County Court of Kings County sentenced him to a term of 7 Yz to 15 years upon a plea of guilty to the charge of robbery in the second degree. On June 6, 1949, he again pleaded guilty to the charge of robbery in the second degree in the same court and was sentenced, as a second-felOny offender, to a term of 10 to 30 years’ imprisonment. He was transferred from Sing Sing Prison to Green Haven Prison on February 28, 1952, and his maximum sentence expires on March 28, 1982. We are told that appellant’s earliest date of parole is January 2, 1959.

Appellant’s first attack upon his 1935 conviction was by application for a writ of error coram nobis which was denied without a hearing by Judge Goldstein on. March 14, 1951. He appealed to the Appellate Division of the New York Supreme Court, Second Department, and applied for leave to prosecute his appeal in forma pauperis, which was denied and his appeal was dismissed on December 3, 1951, for lack of prosecution. Appellant made a second attempt to attack the sentence of January 11, 1935, by filing a petition for a writ of habeas corpus, which petition was denied by the Supreme Court, Dutchess County, on May 21, 1952, on the ground that the writ of error coram nobis is the exclusive remedy in New York for such attacks. His second application for coram nobis, which is the foundation for the petition for habeas corpus in the United States District Court now before us, was denied by Judge Leibowitz, again without a hearing, on December 2, 1955. Further particulars concerning appellant’s efforts to review the order of Judge Leibowitz in the New York state courts will appear in the ensuing discussion.

We are met at the threshold with the contention that the application is premature since appellant has not exhausted his state remedies as required by 28 U.S. C. § 2254.¹ Appellant does not deny that he has not obtained an adjudication of his claim by the New York Court of Appeals, the highest court of the state; and appellee for its part does not deny that appellant is a pauper and has done everything possible under the circumstances tó secure such an adjudication.

Appellant timely filed a notice of appeal from the order of Judge Leibowitz to the Appellate Division of the New York Supreme Court, Second Department, and petitioned for leave to proceed as a poor person, which was denied. He thereupon applied to the Court of Appeals for permission to appeal but was told that the Court of Appeals had no* jurisdiction under such circumstances. He then applied to the Supreme Court of the United States for a writ of certiorari, which was denied. Johnson v. People of State of New York, 351 U.S. 968, 76 S.Ct. 1033, 100 L.Ed. 1487. His petition for a writ of habeas corpus was denied by the District Court, on the ground that, “the petitioner has not exhausted his State Court remedies.” We also find that it was denied on the merits, as will appear in a later part of this opinion.

Although there is no statute or rule of court in New York enabling an indigent defendant to appeal to the Appellate Division from a denial of a writ of error coram nobis, the Appellate Division is considered to have inherent power to authorize an appeal on handwritten papers without requiring fees. Appellee informs us that it is the practice of the Appellate Division to refuse such permission, even though satisfied that the defendant is a pauper, where it appears that the appeal is without merit. The New York Court of Appeals will not review a denial by the Appellate Division of permission to proceed as a poor person.

In the case at bar, appellee tells us that upon appellant’s application to the Appellate Division to proceed as a poor person, “The opposing affidavit did not controvert the allegation of poverty. A fortiori the Appellate Division’s denial of forma pauperis could only have been based on an examination of the merits.” Hence, we have this situation: appellant has obtained an adjudication of his claim by the next to highest court of the state, which under state law is not reviewable by the state’s highest court unless appellant pays certain fees and expenses which he cannot afford. Yet, despite the concession that appellant is financially unable to proceed further in the state courts, it is urged that there has been no showing “that the applicant has exhausted the remedies available in fhe courts of the State, or that there is -x- -x- * the existence of circumstances rendering such process ineffective to protect the rights of the prisoner” within the meaning of -Section 2254.

In all candor we must acknowledge that such was at one time the law in this •circuit. United States ex rel. Kalan v. Martin, 2 Cir., 205 F.2d 514; United States ex rel. Rheim v. Foster, 2 Cir., 175 F.2d 772, and Judge McGohey’s ruling was fully in accord with those decisions. Although until now we have not expressly overruled these cases, United States ex rel. Jordan v. Martin, 2 Cir., 238 F.2d 623, we have indicated at least a willingness to reconsider them. In United States ex rel. Embree v. Cummings, 2 Cir., 233 F.2d 188, 189, we said, “Where the only state remedies are inaccessible to a prisoner because of his poverty, his failure to pursue those remedies does not bar him from applying to the federal courts for relief.” Although that case is perhaps distinguishable, for the Connecticut procedure there under consideration made no provision whatever for a post-conviction remedy in forma pauper-is, we hold the principle equally applicable here. Section 2254 does not deprive a prisoner of access to the federal courts where his failure to exhaust state remedies is due solely to his financial inability to do so.

Our present holding is in harmony with the policy underlying Section 2254. The requirement of exhaustion exists because “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 590, 94 L.Ed. 761. Where, as here, the state courts decline to proceed further, the time is ripe for federal habeas corpus if such is warranted by the factual allegations of the petition.

Furthermore, two recent decisions of the United States Supreme Court have cast doubt upon the constitutionality of our former position. In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the Court held that a state may not constitutionally fail to provide an indigent defendant with a transcript needed to prosecute his appeal, since it would be an unreasonable discrimination to provide more affluent defendants with a means of review not available to poor persons. In Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 551, 1 L.Ed.2d 593, the court held that 28 U.S.C. § 1915, which proscribes appeals in forma pauperis if the trial court certifies that the appeal is not taken in good faith, “is not final in the sense that the convicted defendant is barred from showing that it [the certificate] was unwarranted and that an appeal should be allowed.” We take these decisions as indicating that the Constitution requires that poor defendants must be afforded the same opportunity to secure review of their convictions as are available to those who can afford to pay the necessary costs and expenses of an appeal.² To deny poor persons the right to federal habeas corpus on the ground that they did not utilize state procedures beyond their means would clearly conflict with at least the spirit of these decisions.

It may be that the New York Court of Appeals has recently adopted a somewhat more liberal view toward the allowing of appeals in forma pauperis and the assignment of counsel to prosecute such appeals; see People v. Kalan, 1 N.Y.2d 922, 154 N.Y.S.2d 980, 136 N.E.2d 920; People v. Kalan, 2 N.Y.2d 278, 159 N.Y.S. 2d 480, 140 N.E.2d 357; but we cannot see how this possible change of view in any way affects the disposition of the case now before us.

We hold that 28 U.S.C. § 2254 is not a bar to the application for the writ in the case at bar.

We now turn to the merits. While there is some basis for the contention that Judge McGohey did not pass on the merits, we think the record taken as a whole shows that he did. His memorandum of June 28, 1956 reads:

“The petition shows on its face that the petitioner has not exhausted his State Court remedies. See U[nited]. S[tates]. ex rel. Kalan v. Martin, 2 C[ir]., 205 F.2d 514; U[nited], S[tates]. ex rel. Rheim v. Foster, 2 C[ir]., 175 F.2d 772.

“The petition is dismissed on its merits. Writ denied."

On further consideration Judge McGohey filed an additional memorandum on July 3,1956, as follows:

“In my memorandum decision dated June 28, 1956, the petition of the relator dated June 21, 1956 was denied on the ground that the petition on its face shows that the petitioner has not exhausted his State Court remedies. On July 2 I received from the relator a letter dated June 29, 1956 together with what he describes as ‘a affidavit in opposition to the one received from Dep. Attorney General Michael Freyberg.’ This reply affidavit of the relator is dated June 29, 1956. I have read and considered it. It does not cure the defects apparent on the face of the petition. Accordingly, the decision of June 28 is adhered to.”

We think a fair interpretation of these memoranda is that Judge McGohey “adhered” to his previous determination on both grounds, i. e. because of a failure to exhaust state remedies and on the merits. In other words, he reached the conclusion that there was no sufficient showing by appellant of a deprivation of constitutional rights in connection with his first felony conviction, upon which the sentence he is now serving as a second-felony offender was based, to justify a hearing.

If there was a lack of due process when appellant was convicted, the present sentence cannot stand. There has been no hearing on any of appellant's various petitions for relief, either in the state courts or in the United States District Court. Accordingly, we shall now consider appellant’s factual allegations, which follow:

“15. Petitioner was indicted by the Grand Jury of Kings County, which was filed on October 10, 1934, alleging Robbery in the First Degree, Grand Larceny in the Second Degree and Assault in the Second Degree. Ind. No. 11238.

“On October 10, 1934, petitioner pleaded not guilty. At the outset petitioner was represented by Joseph B. Margolin, Esq.

“On October 24, 1934, Mr. Margolin moved that the plea of guilty be amended to ‘not guilty with a specification of insanity.’ Petitioner objected to the amended plea and after a brief period of disputation, Counsel terminated his relationship with petitioner and petitioner never saw him again.

“On December 17, 1934, petitioner appeared in court alone, without counsel, and accepted a proffered plea of Robbery in the Second Degree. He was not advised by the court of his right to court-assigned counsel.

“Petitioner was 22 years of age and possessed a meager education terminating his formal schooling in the 6th grade. He was indigent and was previously employed as a laborer. He was subnormal in intelligence and the legalistic proceedings confronting were too complex for him to competently comprehend. Though he earnestly believed that he was not insane he lacked the normal intelligence to adequately express himself. Eobbery is divided into three distinct degrees. It would require an experienced legal mind to properly comprehend the elements distinguishing the degrees of robbery. Petitioner, because of his intellectual disability, was in no position to personally cope with the grave problem confronting him. The lawyer abandoned him and he believed that he was destined to proceed alone. Without counsel and not appreciating his right to court-assigned counsel, he was constrained to accept the proffered plea by the District Attorney. Petitioner did not know the grave consequences of his plea.

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“19. In the instant case petitioner was an ignorant, indigent youth. His intellectual disability precluded him from competently defending himself or capable of intelligently waiving his right to counsel. The indictment was a foreign instrument to him. The crime he pleaded guilty to was beyond his •comprehension. He was innocent and because of his poverty and inability to defend himself in person, he was constrained to accept the proffered plea by the District Attorney. The attorney who attended the case at the preliminary proceedings abandoned petitioner at the subsequent vital proceedings. Bewildered and alone, bereft of an adequate education and being inarticulate and incapable of competently expressing himself, petitioner ignorantly yielded to the inexorable current moving toward his doom.”

True it is that where a conviction in a non-capital case has been based upon a plea of guilty in a state court, a mere allegation that petitioner was of low intelligence and neither had nor was offered a lawyer at the time the plea was entered will not suffice. Cf. Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188. There must be some showing that the attendant circumstances were such as to make it appear that there was some essential unfairness in the state court proceedings. United States ex rel. Turpin v. Warden of Green Haven Prison, 2 Cir., 190 F.2d 252. On the other hand, it seems clear to us that the sufficiency of the showing cannot depend upon the use of any precise formula; we must give appellant’s allegations a fair and reasonable construction — no more, no less.

We are told by appellee that a Lunacy Commission was appointed on October 24, 1934, and that at the conclusion of the proceedings the Commissioners found “that said defendant was sane at the time of the commission of the alleged crime and is sane at the present time and able to confer with counsel in the proper preparation of his defense.” We may assume this to be so, although no such information was placed in the record before Judge McGohey, and we find no occasion now to pass upon the question of whether and to what extent and under what circumstances it may be proper for us to consider matters of record in state courts, in proceedings of the character now before us, which were not before the District Court which made the order appealed from. But the point under discussion is not whether the findings of the Lunacy Commission were supported by sufficient and proper evidence or whether these findings are clearly erroneous or against the weight of the evidence. The sole relevancy of the Lunacy Commission’s action, as we see it, is that, supplementing counsel’s plea of “not guilty with a specification of insanity,” the very fact that the Lunacy Commission was convened, took proofs and made findings, gives color and plausibility to the claim of appellant that he was of sufficiently weak mind and low intelligence at least to require that the court offer him the services of assigned counsel before accepting his change of plea to guilty. Cf. Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154. All this would follow as a matter of law, or is to be inferred from the interposition of the plea of insanity; so, we repeat, we may assume that the Lunacy Commission was convened and found appellant sane, without taking judicial notice of facts not before the District Judge. Making the assumption, however, far from helping appellee, cuts in the opposite direction. The question before us is not whether at the time of changing his plea appellant was or was not compos mentis. “One might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.” Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 145, 147, 99 L.Ed. 135.

A cursory reading of appellee’s brief leaves the impression that appellant was perhaps represented by counsel when he changed his plea to guilty. But we can find no assertion therein that the court records of the Kings County Court show this to be the- fact. What it all comes down to is that it does appear that assigned counsel did represent appellant for a time and appellee relies upon a so-called presumption that such representation continued, despite appellant’s allegations to the contrary. If, as and when we have a case before us where the records of a state court make a clear showing of relevant matter not before the District Court, and some explanation of why the information was withheld in the first instance, we shall decide the question of whether or not it is proper for us to take judicial notice thereof.

There can be no exact and readily applied rule by which the quantum of showing necessary to require a hearing can be measured in these federal habeas corpus cases. But here appellant’s allegations make it apparent that his counsel thought appellant was not in his right mind; this, coupled with the fact that the court had already deemed it necessary to' assign counsel, the allegations of subnormal intelligence and the other alleged attendant circumstances of the case, including appellant’s vigorous insistence that he is innocent of the charge to which he pleaded guilty,, make it essential, we think, that there be-a hearing to determine the truth and substantiality of appellant’s claim of deprivation of constitutional rights in connection with his 1935 felony conviction.

It is provided in 28 U.S.C. § 2243 that r

“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award! the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.”

The reason for this provision is evident. A large percentage of habeas corpus applications are submitted by persons who have had no legal training. Indeed, many applicants find it impossible even to state coherently in writing the basic facts concerning the detention complained of. That being so, it would be a mockery of the Great Writ to refuse it on the ground that the applicant had failed to allege clearly enough the facts showing the impropriety of the imprisonment where there remains doubt as to whether a better statement would lead to the prisoner’s release. Accordingly,, an application for habeas corpus may not be dismissed “unless it appears from the application that the applicant or person detained is not entitled thereto.” If there be doubt as to the adequacy or specificity of the application, the statute plainly gives the benefit of the doubt to the petitioner. Such applications are to' be determined after the facts of the situation have been developed; they were not. meant to be choked off by the petitioner’s literary ineptness, reticence, or mistaken notions of the ritualistic requirements of/ legal documents. The Congress clearly meant to err on the side of too many rather than too few hearings.

That this rule is conducive to determinations by the District Courts of constitutional complaints is a tribute to our judicial system’s thorough-going solic.itude for the rights of each individual, rather than a condemnation of it. The fact that many such determinations do not result in the release of the prisoner does not indict our system’s efficiency; it but demonstrates the time and effort we are prepared to devote to keeping to a minimum the miscarriages of justice that occasionally occur despite all precautions. We would not, were the choice ours, eliminate or restrict the writ because of the high percentage of times the detention is shown to be proper. Similarly, we would not refuse a prisoner a hearing on the ground that we think it improbable he will be able to prove his assertions. We must not play fast and loose with basic constitutional rights in the interest of administrative efficiency.

In view of the more recent Supreme Court decisions concerning the duty of the state to provide counsel in criminal proceedings, e. g. Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Massey v. Moore, supra; Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127, we cannot say that appellant’s charge of denial of due process is not a colorable one. Appellant is entitled to a hearing at which his claim of lack of due process in connection with his 1935 conviction may be adjudicated.

Reversed and remanded.

CLARK, Chief Judge, and Judge LUMBARD dissent in an opinion by Judge LUMBARD.

1 . The provisions of 28 U.S.C. § 2254 are set forth in a footnote to the opinion in the companion case of United States ex rel. Roosa v. Martin, 247 F.2d 659.

2 . It may be noted that neither an indigent defendant nor one possessing the necessary means to pay filing fees, employ an attorney and print his briefs and appendix has any right to require us to entertain a frivolous appeal. In either case this Court has power, on motion by the adverse party or suo mota, to dismiss such an appeal.